Many employers have policies or
codes of practice to govern the relationships between employees.
Employees who abuse their
colleagues or gossip about them can face dismissal as a sanction because what
they say is a breach of the employer’s polices or codes.
The Fair Work Commission recently
heard two unfair dismissal applications that related to misconduct based on
what employees said.
In Sayers v CUB Pty Ltd [2016] FWC 3428, the Commission found that a
dismissal based on an employee swearing and racially abusing a colleague was
justified.
In Beamish v Calvary Health Care Tasmania Ltd [2016] FWC 1816 the
Commission found that a dismissal based on emails gossiping about or
disparaging a manager was not justified although the emails showed a lack of
judgment.
In both cases the Commission found
that what Mr Sayers and Ms Beamish said were breaches of their respective employer’s
policies or codes on how to behave towards others.
The language Mr Sayers was found to
have used was threatening, racially motivated and littered with four letter
words.
Mr Sayers knew what the correct
procedure was for complaining about a colleague: racially abusing him was not
the way to go.
Fifteen years of unblemished
service with CUB and an otherwise good relationship with management did not
help Mr Sayers.
The Commission, like CUB, showed no
tolerance for racial abuse and the dismissal was upheld.
Ms Beamish had been sarcastic and
disparaging in her comments about a manager. Some of what she said was funny –
but at the manager’s expense.
Although not abusive or racially
motivated what she said was still contrary to Calvary’s values distilled in its
code of conduct as “hospitality, healing, stewardship and respect”.
Ms Beamish apologised at the first
opportunity and recognised her behaviour as immature and inappropriate.
The Commission was prepared to
reinstate her because it was satisfied she would be “welcome back by the
overwhelming majority of employees”.
